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Minn. Senate case tests court that shuns politics

(AP) - Republican Norm Coleman's next and
possibly last gambit for regaining his U.S. Senate seat will come
before a Minnesota Supreme Court that seems built to his advantage.

Five of the seven justices were put there by Republican
governors. But Coleman's edge with the court, which is expected to
receive the appeal this week of his election-lawsuit loss to
Democrat Al Franken, isn't all it seems.

Two of the GOP appointees will sit out the appeal because they
helped referee the statewide recount. A third has drawn fire for
past donations to Coleman's Senate campaigns. And the court as a
whole has a history of nonpartisanship when it comes to
election-law decisions.

Sitting out the caseMPR Photo/Tim Nelson

While courts nationwide are being increasingly drawn into
political disputes, few elections reach this stage.

Fewer still
have such stakes: A six-year Senate term vital to the Washington
power struggle, the pursuit of which has already cost the two men
$50 million.

"These aren't the kind of cases judges want to see come their
way," said Michael Pitts, a professor at the Indiana University
School of Law in Indianapolis. "It's tough to divorce what is a
political judgment and what is a legal judgment."

Few cases mean not much legal precedent, something Pitts said
could give judges room for partisanship to creep in. But Kathleen
Blatz, a retired chief justice of the high court, rejected that.

Blatz said she's confident her former colleagues will reach a
conclusion based on the law, not politics, in part because they
know they're under a microscope.

Franken news conferenceMPR Photo/Tom Scheck

"You'd have to be blind to not see in the Senate race that people
are going to be looking at this decision through their own partisan
viewpoints of a particular candidate," Blatz said. "You are aware
that what you do will be criticized."

In such cases, Blatz said, a clearly reasoned decision is the
key to public trust in the court.

In 2002, Blatz's Supreme Court had to decide how to treat
absentee ballots when Sen. Paul Wellstone died in the campaign
homestretch.

Norm ColemanAP Photo/Jim Mone, pool

The court quickly ruled absentee voters were entitled
to replacement ballots by request, but not automatically. As a
practical matter, it meant Wellstone voters who didn't act
forfeited their Senate vote.

A detailed
court opinion issued six months after the ruling showed that
justices confronted constitutional questions about the consistent
treatment of voters - similar to concerns Coleman wants the court
to address anew.

Coleman is appealing a special three-judge panel's ruling that
Franken won 312 more votes in the 2008 election.

The former senator
argues that some local officials were more diligent about verifying
whether voters complied with absentee ballot standards, causing
thousands of ballots to be rejected that could have counted
elsewhere. He plans to invoke the Constitution's equal-protection
clause.

Last week's unanimous ruling by the panel said that local
officials used reasonable latitude in administering the election
and equal protection doesn't require "rigid sameness."

“These aren't the kind of cases judges want to see come their way. It's tough to divorce what is a political judgment and what is a legal judgment.”

Michael Pitts, Indiana University law professor

In a solo dissent in the 2002 case, Justice Alan Page objected
to parts of the decision that gave what he saw as uneven weight to
ballots, saying it "presents a fundamental constitutional question
that reaches to the very core of democracy: the right of citizens
to have their votes counted."

Page remains, but four others from that Supreme Court are gone.
A majority of the current court was selected by Republican Gov. Tim
Pawlenty.

Chief Justice Eric Magnuson and Justice G. Barry Anderson, both
Pawlenty appointees, served on the state Canvassing Board that
adopted the recount rules and certified Franken as its winner.

Accordingly, they've recused themselves from the Senate court case.

One of the newest justices, Christopher Dietzen, is facing calls
from left-leaning bloggers to step back, too. That's because he was
a Coleman donor prior to joining the bench, including $500 in
contributions to his Senate fund.

Dietzen is not alone in making donations in his pre-judge days:

Lorie Gildea gave to Coleman's 1998 gubernatorial campaign and
Helen Meyer cut checks to Democrats years ago, including Wellstone.

None of the justices would comment on their donations or their
status in the case, a court spokesman said.

Suggestions that the contributions are grounds for
disqualification bother Blatz, who said justices set aside their
personal views all the time. Some election law and legal ethics
scholars agree.

"It shouldn't matter at all. Judges take an oath when they
become judges to apply the law and the Constitution," said Bruce
Green, director of the Louis Stein Center for Law and Ethics at
Fordham University School of Law. "It's assumed that when they
become judges that they call it fairly and are not influenced by
their prior political engagements."

In Minnesota, most judges reach the bench through gubernatorial
appointment and must stand periodically for re-election. (Page, a
former Minnesota Vikings star, is the only justice to join the
court through direct election.)

Although restrictions on judicial
candidates expressing political views were recently loosened, the
state hasn't seen overt partisanship in its judicial elections yet.

Nationwide, election litigation has taken off since the turn of
the century, according to a forthcoming Stanford Law Review study
by Loyola Law School professor Rick Hasen.

He documented 361 cases
that reached state or federal courts in 2004 and 297 cases last
year, encompassing campaign finance and redistricting challenges as
well as voting administration disputes. Before 2000, he said, the
average was 94 cases per year.

But Hasen said only a small percentage of the cases involve
lawsuits by a candidate over the results of an election.

As a result, the case law directly applying to the questions in
this election is limited. The most famous recent election case is
Bush v. Gore, a much-debated U.S. Supreme Court ruling that
effectively ended the 2000 presidential race.

In its 5-4 decision,
the court tried to tailor its decisions to the facts at hand,
noting that "the problem of equal protection in election processes
generally presents many complexities."

Without many cases to consult, Minnesota's Supreme Court might
have room to maneuver.

"One of the problems when you don't have precedent is that
opens up the ability for judges to be much more creative, and their
creativity may reflect their partisan viewpoints," said Pitts, the
Indiana University professor. "Precedent can do a pretty good job
of cabinning the partisan preferences of judges."